Ashutosh v. State of M.P

Summon the lower court record. List for hearing in due course. Ref: Order on the Application for Suspension of Sentence Heard Mr. Upendra Upadhyay, the learned counsel for applicant/appellant and the learned A.G.A. for State/opposite party-1. Perused the record. Feeling aggrieved by the judgement and order dated 06.02.2025/07.02.2025, passed by Special Judge (Rape and POCSO Act)-I/Additional Sessions Judge, Etah in PST No. 63 of 2018 (State Vs. Chhote @ Vipin and ors.), under sections 452, 323, 504, 354 IPC & Section 8 POCSO Act, arising out of Case Crime No.23 of 2018, Police Station- Bagwala, District- Etah applicants/-appellants have approached this Court by means of aforementioned criminal appeal. judgment By means of and order, impugned applicants/appellants have been convicted under section 452 IPC and consequently, sentenced to five years rigorous imprisonment along with fine of Rs. 10,000/- each and in case of default, applicants/appellants are to undergo six months additional imprisonment each, under section 354/34 IPC and consequently, sentenced to three years rigorous imprisonment along with fine of Rs. 5,000/- each and in case of default in payment of fine, applicants/appellants are to undergo three months additional imprisonment each, under section 323/34 IPC and consequently, sentenced to six months simple imprisonment along with fine of Rs. 1,000/- each and in case of default in payment of fine, applicants/appellants are to undergo ten days additional imprisonment each. The impugned judgement and order further records that all the sentences shall run concurrently. Applicants/appellants were on bail during the pendency of trial but were taken into custody in compliance of the judgment and order dated 06.02.2025/07.02.2025. Accordingly, applicants/appellants have filed aforementioned application for suspension of sentence, seeking their enlargement on bail during the pendency of present appeal. Learned counsel for applicants/appellants contends that even though applicants/appellants are convicted accused, yet they are liable to be enlarged on bail during the pendency of present criminal appeal. Referring to the judgement of Supreme Court in Atul @ Ashutosh Vs. State of M.P., (2024) 3 SCC 663 it is urged by the learned counsel for applicants/appellants that Apex Court has itself observed that where definite sentence punishment has been awarded by Court below against accused appellant, and there are no chances of the appeal having heard in near future, the High Court must enlarge such an accused on bail. According to the learned counsel for applicants/appellants, in view of heavy pendency of appeals before this Court, coupled with the fact that there is an acute shortage of Judges in High Court, there is no likelihood of the present appeal being heard in near future. Even otherwise, applicants/appellants are men of clean antecedents inasmuch as they have no criminal history to their credit except the present one. Applicants-appellant are in jail since 06.02.2025. Apart from above, it is also contended by the learned counsel for applicants-appellants that the conclusion drawn by Court below is not only illegal but also perverse. It is thus urged by the learned counsel for applicants/appellants that applicants/appellants are liable to be enlarged on bail during the pendency of present appeal. In case the applicants/appellants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate in the hearing of present appeal. Per contra, the learned A.G.A. for State/opposite party-1 has opposed the prayer for bail. He submits that since applicants/appellants are named as well as convicted accused, therefore they do not deserve any indulgence by this Court. According to the learned A.G.A. interest of justice shall better be served in case the appeal itself is heard on merits by fixing a short date instead of enlarging the applicants/appellants on bail. Applicants/appellants are guilty of committing an offence which is not only illegal but also immoral. As such the applicants/appellants do not deserve to be enlarged on bail. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicants/appellants in support of the prayer for bail, with reference to the record at this stage. Having heard the learned counsel for applicants/appellants, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicants/appellants, accusation made coupled with the fact that the Apex Court in the case of Atul @ Ashutosh (Supra) has observed that where an accused applicant has been awarded definite sentence of punishment and there are no chances of the appeal being heard in near future, then in such a circumstance the accused-applicant should be enlarged on bail during the pendency of appeal. No exception can be carved out in the case of present applicants/appellants. In view of heavy pendency of appeals before this Court and also an acute shortage of Hon'ble Judges in this Court, there is no likelihood of the present appeal being heard in near future. Considering the above and also the period of incarceration undergone, the clean antecedents of applicants/appellants, but irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail but without making any comment on the merits of the case, applicants/appellants have made out a case for bail. Accordingly, the application for suspension of sentence is Allowed. Let the applicants/appellants- Chhotey @ Vipin, Jokhi @ Ankit and Bantu @ Virendra be released on bail in aforesaid case crime number on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned. It is however provided that the amount of fine awarded against applicants/appellants by Court below shall be deposited by applicants/appellants with the court below, within a period of one month from today, failing which the bail granted to applicants/appellants shall under this order stand cancelled and they shall be taken into custody to serve out the sentence, awarded by court below. Order Date :- 5.3.2025 S.A.

Summon the lower court record. List for hearing in due course. Ref: Order on the Application for Suspension of Sentence Heard Mr. Upendra Upadhyay, the learned counsel for applicant/appellant and the learned A.G.A. for State/opposite party-1. Perused the record. Feeling aggrieved by the judgement and order dated 06.02.2025/07.02.2025, passed by Special Judge (Rape and POCSO Act)-I/Additional Sessions Judge, Etah in PST No. 63 of 2018 (State Vs. Chhote @ Vipin and ors.), under sections 452, 323, 504, 354 IPC & Section 8 POCSO Act, arising out of Case Crime No.23 of 2018, Police Station- Bagwala, District- Etah applicants/-appellants have approached this Court by means of aforementioned criminal appeal. judgment By means of and order, impugned applicants/appellants have been convicted under section 452 IPC and consequently, sentenced to five years rigorous imprisonment along with fine of Rs. 10,000/- each and in case of default, applicants/appellants are to undergo six months additional imprisonment each, under section 354/34 IPC and consequently, sentenced to three years rigorous imprisonment along with fine of Rs. 5,000/- each and in case of default in payment of fine, applicants/appellants are to undergo three months additional imprisonment each, under section 323/34 IPC and consequently, sentenced to six months simple imprisonment along with fine of Rs. 1,000/- each and in case of default in payment of fine, applicants/appellants are to undergo ten days additional imprisonment each. The impugned judgement and order further records that all the sentences shall run concurrently. Applicants/appellants were on bail during the pendency of trial but were taken into custody in compliance of the judgment and order dated 06.02.2025/07.02.2025. Accordingly, applicants/appellants have filed aforementioned application for suspension of sentence, seeking their enlargement on bail during the pendency of present appeal. Learned counsel for applicants/appellants contends that even though applicants/appellants are convicted accused, yet they are liable to be enlarged on bail during the pendency of present criminal appeal. Referring to the judgement of Supreme Court in Atul @ Ashutosh Vs. State of M.P., (2024) 3 SCC 663 it is urged by the learned counsel for applicants/appellants that Apex Court has itself observed that where definite sentence punishment has been awarded by Court below against accused appellant, and there are no chances of the appeal having heard in near future, the High Court must enlarge such an accused on bail. According to the learned counsel for applicants/appellants, in view of heavy pendency of appeals before this Court, coupled with the fact that there is an acute shortage of Judges in High Court, there is no likelihood of the present appeal being heard in near future. Even otherwise, applicants/appellants are men of clean antecedents inasmuch as they have no criminal history to their credit except the present one. Applicants-appellant are in jail since 06.02.2025. Apart from above, it is also contended by the learned counsel for applicants-appellants that the conclusion drawn by Court below is not only illegal but also perverse. It is thus urged by the learned counsel for applicants/appellants that applicants/appellants are liable to be enlarged on bail during the pendency of present appeal. In case the applicants/appellants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate in the hearing of present appeal. Per contra, the learned A.G.A. for State/opposite party-1 has opposed the prayer for bail. He submits that since applicants/appellants are named as well as convicted accused, therefore they do not deserve any indulgence by this Court. According to the learned A.G.A. interest of justice shall better be served in case the appeal itself is heard on merits by fixing a short date instead of enlarging the applicants/appellants on bail. Applicants/appellants are guilty of committing an offence which is not only illegal but also immoral. As such the applicants/appellants do not deserve to be enlarged on bail. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicants/appellants in support of the prayer for bail, with reference to the record at this stage. Having heard the learned counsel for applicants/appellants, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicants/appellants, accusation made coupled with the fact that the Apex Court in the case of Atul @ Ashutosh (Supra) has observed that where an accused applicant has been awarded definite sentence of punishment and there are no chances of the appeal being heard in near future, then in such a circumstance the accused-applicant should be enlarged on bail during the pendency of appeal. No exception can be carved out in the case of present applicants/appellants. In view of heavy pendency of appeals before this Court and also an acute shortage of Hon'ble Judges in this Court, there is no likelihood of the present appeal being heard in near future. Considering the above and also the period of incarceration undergone, the clean antecedents of applicants/appellants, but irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail but without making any comment on the merits of the case, applicants/appellants have made out a case for bail. Accordingly, the application for suspension of sentence is Allowed. Let the applicants/appellants- Chhotey @ Vipin, Jokhi @ Ankit and Bantu @ Virendra be released on bail in aforesaid case crime number on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned. It is however provided that the amount of fine awarded against applicants/appellants by Court below shall be deposited by applicants/appellants with the court below, within a period of one month from today, failing which the bail granted to applicants/appellants shall under this order stand cancelled and they shall be taken into custody to serve out the sentence, awarded by court below. Order Date :- 5.3.2025 S.A.